Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 15 October 2004
• Citation: 2005 (1) SA 580 (CC)
• Docket Number: CCT 49/03, 69/03 and 50/03
• Counsel: W Trengove SC (with him R Paschke and S Cowen) for the applicants. N Cassim SC for the fourth respondent. P M Mtshaulana and K Pillay for the amicus curiae. V Maleka SC (with him K Pillay) for the applicant. M Chaskalson and S Cowen for the applicant. N Cassim SC (with him T I Bodiba) for the second respondent.
• Court: Constitutional Court

Langa DCJ:

Introduction

[1] Two statutes govern intestate succession in South Africa. They are the Intestate Succession Act 81 of 1987 and the Black Administration J

Langa DCJ

Act 38 of 1927 (the Act). Section 23 of the Act [1] read with regulations framed in terms A of s 23(10) contains provisions that deal exclusively with intestate deceased estates of Africans. [2] Estates governed by s 23 are specifically excluded from the application of the Intestate Succession Act. [3] The regulations were published in a Government Gazette [4] under the title 'Regulations for the Administration and Distribution of the Estates of Deceased Blacks' (the regulations). B

[2] The parallel system of intestate succession set up by s 23 and the regulations purports to give effect to the customary law of succession. It prescribes which estates must devolve in terms of what the Act describes as 'Black law and custom' and details the steps that must be taken in the administration of those estates. C

[3] Central to the customary law of succession is the principle of male primogeniture. [5] There are two main issues in the cases before this Court. The first is the question of the constitutional validity of s 23 of the Act. The second concerns the constitutional validity of the principle of primogeniture in the D context of the customary law of succession.

[4] Because of the nature of the issues to be canvassed, the Chief Justice directed the Registrar of this Court to deliver copies of the directions and the two applications for confirmation [6] to the Chairperson of the E National House of Traditional Leaders. [7] The provisions of Rule 9 of the Rules of the Constitutional Court that were in force at the time [8] were also drawn to his attention. No submissions were, however, received from the House of Traditional Leaders.

[5] There are three cases before the Court. They were heard together, by direction of the Chief Justice, since they are all F concerned with intestate succession in the context of customary law.

[6] The first case, Bhe and Others v Magistrate, Khayelitsha, and Others, G

Langa DCJ

(the Bhe case) [9] followed a decision by the magistrate of Khayelitsha and, on appeal, that of the Cape High Court. A The second, Shibi v Sithole and Others (the Shibi case), [10] concerned a decision of the magistrate of Wonderboom which was successfully challenged in the Pretoria High Court. In both cases, the respective magistrates made decisions on the basis of the relevant provisions of the legislation governing intestate succession. B

[7] The third case is an application for direct access to this Court brought jointly by the South African Human Rights Commission and the Women's Legal Centre Trust, respectively the first and second applicants. They had initially applied to the Pretoria High Court for relief which included the constitutional invalidation of the whole of C s 23 of the Act. Before argument was heard in the High Court, the order in the Bhe case [11] was referred to this Court for confirmation. Rather than proceed in the Pretoria High Court, the two applicants then applied for direct access to this Court for the relief which they had initially sought in the High Court. The application for direct access was granted by this D Court on 3 November 2003 and the reasons for that decision are set out below. [12]

[8] I proceed to set out the background in respect of each of the matters before us. E

(1) The Bhe case

[9] This case comes before us as an application for confirmation of an order of the Cape High Court. It is brought jointly by Nontupheko Maretha Bhe (Ms Bhe), who is the third applicant in this matter, and the Women's Legal Centre Trust, the fourth applicant. F

[10] Ms Bhe seeks no relief for herself but brings the application in the following capacities: (a) On behalf of her two minor daughters, namely Nonkululeko Bhe, born in 1994 and Anelisa Bhe, born in 2001; [13] (b) in the public interest, [14] and (c) in the interest of the female descendants, J

Langa DCJ

descendants other than eldest descendants and extra-marital children [15] who are descendants of people A who die intestate. [16] Nonkululeko and Anelisa are the first and second applicants respectively and are the children of Ms Bhe and Mr Vuyo Elius Mgolombane (the deceased) who died intestate in October 2002. The Women's Legal Centre Trust acted in this application 'in the public interest'. [17] B

[11] In this Court, the first respondent is the magistrate of Khayelitsha, who appointed the father of the deceased, Mr Maboyisi Nelson Mgolombane (the second respondent) as representative of the estate. The President of the Republic of South Africa (the President) and the Minister for Justice and Constitutional Development (the Minister) are cited as the third and fourth respondents C respectively. The Commission for Gender Equality, a State institution established under s 187 of the Constitution, [18] was admitted as amicus curiae and presented helpful written and oral submissions to the Court.

[12] There was only one potentially material factual dispute before the Cape High Court, and that is whether Nonkululeko and Anelisa D Bhe are extra-marital children. Both Ms Bhe and the deceased's father were agreed that no marriage or customary union had taken place between Ms Bhe and the deceased. The deceased's father however insisted that the deceased had paid lobolo, an assertion which Ms Bhe denied. Relying on E

Langa DCJ

the rule in Plascon-Evans, [19] however, the High Court approached the issue on the basis that lobolo had A been paid and that Ms Bhe's daughters were accordingly not extra-marital children.

[13] Since the question whether or not the two minor daughters of Ms Bhe are extra-marital children bears on their status, reliance on the rule in Plascon-Evans was, in my view, inappropriate. I consider that the evidence produced is not sufficient to resolve the B issue one way or another. It will accordingly be necessary, for purposes of this judgment, to deal with the effects of extra-marital birth on intestate succession, from the perspective of the rule of primogeniture and that of s 23 of the Act and the regulations. I return to this issue in due course. [20] C

[14] It was not in dispute that from 1990 the deceased had a relationship with Ms Bhe and they lived together. He was a carpenter and she a domestic worker. They were poor and lived in a temporary informal shelter in Khayelitsha, Cape Town. The deceased subsequently obtained State housing subsidies which he used to purchase the property on which they lived as well as building materials in order to build a house. He however died before the house could be built. Until his D death, the youngest of the two minor children lived with him and Ms Bhe in the temporary informal shelter. Nonkululeko was staying temporarily at the home of the deceased's father. The deceased supported Ms Bhe and the two children and they were dependent on him. The estate comprises the temporary informal shelter and the E property on which it stands, and miscellaneous items of movable property that Ms Bhe and the deceased had acquired jointly over the years, including building materials for the house they intended to build.

[15] After the death of the deceased, the relationship between Ms Bhe and the father of the deceased deteriorated to the point of F acrimony. In spite of the fact that he resided in Berlin in the Eastern Cape and nowhere near Cape Town, he was appointed representative and sole heir of the deceased estate by the magistrate in accordance with s 23 of the Act and the regulations. G

Langa DCJ

[16] Under the system of intestate succession flowing from s 23 and the regulations, in particular reg 2(e), the two minor A children did not qualify to be the heirs in the intestate estate of their deceased father. According to these provisions, the estate of the deceased fell to be distributed according to 'Black law and custom'.

[17] The deceased's father made it clear that he intended to sell the immovable property to defray expenses incurred in connection B with the funeral of the deceased. There is no indication that the deceased's father gave any thought to the dire consequences which would follow the sale of the immovable property. Fearing that Ms Bhe and the two minor children would be rendered homeless, the applicants approached the Cape High Court and obtained two interdicts pendente lite to prevent (a) the selling of the C immovable property for the purposes of off-setting funeral expenses; and (b) further harassment of Ms Bhe by the father of the deceased.

[18] The applicants challenged the appointment of the deceased's father as heir and representative of the estate in the High D Court. He opposed the application. The magistrate and the Minister, cited as respondents, did not oppose and chose to abide the decision of the High Court.

[19] The High Court concluded that the legislative provisions that had been challenged and on which the father of the deceased relied, were inconsistent with the Constitution and were therefore E invalid. The order of the High Court, in relevant part, reads as follows:

'1.

It is declared that s 23(10)(a), (c) and (e) of the Black Administration Act are unconstitutional and invalid and that reg 2(e) of the Regulations of the Administration and Distribution of the Estates of Deceased Blacks, published under Government Gazette 10601 dated 6 February 1987 is consequently also invalid. F

2.

It is declared that s 1(4)(b) of the Intestate Succession Act 81 of 1987 is unconstitutional and invalid insofar as it excludes from the application of s 1 any estate or part of any estate in...